Bangalore District Court
In O.S.No.3525/2014 vs In O.S.No.3525/2014 on 29 February, 2020
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. MALLIKARJUNA., B.Com., LL.M.,
XIV ADDL. CITY CIVIL JUDGE
Dated this the 29th day of February, 2020
O.S.No.3525/2014 C/w O.S.No.2874/2015
& O.S.No.7365/2015
Plaintiff/s in O.S.No.3525/2014:
: 1. Sri.B.Santhosh,
S/o Late J.Bhawarilal,
Aged about 53 years,
No.3, III Cross, Chickpet,
Bangalore-560 053.
2. Smt.Leela Bai,
W/o Sri.B.Santhosh,
Aged about 47 years,
No.3, III Cross,Chickpet,
Bangalore-560 053.
(By Sri.S.G.A., Advocate)
- Vs -
Defendant/s in O.S.No.3525/2014:
Sri.Uttamchand,
S/o Late Bherulal Jain,
Aged about 35 years,
Residing at No.1 and 2/1,
7th Main, Tata Silk farm,
Opp: Ganesha Temple,
O.S.No.3525/2014 C/w O.S.No.2874/2015
2 O.S.No.7365/2015
Bangalore-560 028.
And also at:
Sri.Uttamchand,
S/o Late Bherulal Jain,
Aged about 35 years,
Shop premises bearing No.(G-2)
in the Ground floor of premises No.3,
Bhawar Chambers, III Cross,
Chickpet, Bangalore-560 053.
(By Sri.M.S.H.K.,Advocate)
Plaintiff/s in O.S.No.2874/2015:
: 1. Sri.B.Santhosh,
S/o Late J.Bhawarilal,
Aged about 54 years,
No.3, III Cross, Chickpet,
Bangalore-560 053.
2. Smt.Leela Bai,
W/o Sri.B.Santhosh,
Aged about 48 years,
No.3, III Cross, Chickpet,
Bangalore-560 053.
(By Sri.S.G.A., Advocate)
- Vs -
Defendant/s in O.S.No.2874/2015:
Sri.Uttamchand,
S/o Late Bherulal Jain,
Aged about 35 years,
Residing at No.1 and 2/1,
7th Main, Tata Silk farm,
Opp: Ganesha Temple,
Bangalore-560 028.
O.S.No.3525/2014 C/w O.S.No.2874/2015
3 O.S.No.7365/2015
And also at:
Sri.Uttamchand,
S/o Late Bherulal Jain,
Aged about 36 years, (Sathyam Silks)
Shop premises bearing No.(G-2)
in the Ground floor of premises No.3,
Bhawar Chambers, III Cross,
Chickpet, Bangalore-560 053.
(By Sri.M.S.H.K.,Advocate)
Plaintiff/s in O.S.No.7365/2015:
: 1. Sri.B.Santhosh,
S/o Late J.Bhawarilal,
Aged about 54 years,
No.3, III Cross, Chickpet,
Bangalore-560 053.
2. Smt.Leela Bai,
W/o Sri.B.Santhosh,
Aged about 48 years,
No.3, III Cross, Chickpet,
Bangalore-560 053.
(By Sri.S.G.A., Advocate)
- Vs -
Defendant/s in O.S.No.7365/2015:
Sri.Uttamchand,
S/o Late Bherulal Jain,
Aged about 36 years,
Residing at No.1 and 2/1,
7th Main, Tata Silk farm,
Opp: Ganesha Temple,
Bangalore-560 028.
O.S.No.3525/2014 C/w O.S.No.2874/2015
4 O.S.No.7365/2015
And also at:
Sri.Uttamchand,
S/o Late Bherulal Jain,
Aged about 36 years, (Sathyam Silks)
Shop premises bearing No.(G-2)
in the Ground floor of premises No.3,
Bhawar Chambers, III Cross,
Chickpet, Bangalore-560 053.
(By Sri.H.L.M.S.,Advocate)
Date of institution
of the suits. : 1. O.S.No.3525/2014 - 03.05.2014
2. O.S.No.2874/2015 - 27.03.2015
3. O.S.No.7365/2015 - 25.08.2015
Nature of the suit
[suit on pronote, suit : 1. O.S.No.3525/2014 - Ejectment
for declaration and and such other reliefs.
possession, suit 2. O.S.No.7365/2015 - Recovery
for injunction] of money and such other reliefs
3. O.S.No.2874/2015 - Recovery
Of money and such other reliefs
Date of the commencement
of recording of the evidence : 17.03.2015
Date on which the
Judgment was pronounced : 28.02.2020
Year/s Month/s Day/s
Total Duration
1. O.S.No.3525/2014 5 09 26
2. O.S.No.2874/2015 4 11 02
3. O.S.No.7365/2015 4 06 04
O.S.No.3525/2014 C/w O.S.No.2874/2015
5 O.S.No.7365/2015
COMMON JUDGMENT
The suit in O.S.No.3525/2014 is filed by the
plaintiffs against the defendant for the relief of ejectment
and such other reliefs.
2. The suit in O.S.No.7365/2015 and
O.S.No.2874/2015 is filed by the plaintiffs against the
defendant for the recovery of money with interest and
cost.
3. All the suits are inter-related and connected to
each other, and parties are also same, to avoid
reputation, to avoid conflicting judgments may arise and
to save time of the Court in recording evidence, all the
suits were clubbed together for joint trial.
4. The brief facts of the plaintiffs' case in
O.S.No.3525/2014 are as under:
That plaintiffs are the owners and landlords of suit
schedule premises and defendant was tenant under the
plaintiffs. (till the date of termination of tenancy) on a
monthly rent of Rs.1,85,000/-. The tenancy month is the
O.S.No.3525/2014 C/w O.S.No.2874/2015
6 O.S.No.7365/2015
English Calendar month commencing from 1st day of
every month and ending with the last day of same
month. The schedule premises was let out for non
residential commercial purposes, it measures more than
14 square meters. The defendant had agreed to enhance
the rent by 15% per month on the agreed rent once in
three years from the period of date of agreement. The
date of agreement was 26.11.2009. The defendant had
agreed to pay the maintenance charges of Rs.3000/-
every month. He has also agreed to pay service tax on
the rent applicable. The defendant has not paid the
maintenance charges and also the service tax as agreed
by him. He has also not paid the enhancement of the
rent as agreed by him. The defendant was paying the
rent by means of two cheques. One self cheque for
Rs.1,10,000/- and another cheque for Rs.75,000/- after
deducting TDS for his convenience sake, in all
Rs.1,85,000/-. Inspite of several demands and requests
by the plaintiffs the defendant with held payment of
maintenance charges, service tax and enhancement of
O.S.No.3525/2014 C/w O.S.No.2874/2015
7 O.S.No.7365/2015
rent. Therefore he is liable to be evicted from the
schedule premises on the same ground. It is learnt that
defendant is trying to sub let schedule premises on the
guise of entering into partnership firm with other persons
contrary to the terms and conditions of the agreement
and illegally unauthorisedly and without consent of the
plaintiff and contrary to the terms and conditions of the
lease agreement. The period of lease expired.
Therefore he is liable to be evicted. The plaintiff have
required the schedule premises for own use and
occupation. The plaintiffs have already appraised these
facts to the defendant orally and requested to deliver the
vacant possession of the schedule premises in their
favour, somehow the defendant postponing to vacate on
one or the other pretext. The plaintiffs do not wish to
continue the defendant in the schedule premises and
have terminated his tenancy by issuing quit notice, dated
28.03.2014, immediately after expiry of 30.04.2014.
The said notice duly served on defendant. The defendant
has neither replied it nor complied the terms of the
O.S.No.3525/2014 C/w O.S.No.2874/2015
8 O.S.No.7365/2015
notice. Hence the present suit is filed. In the notice,
dated 28.03.2014 itself it was made clear that
subsequent to the termination of the defendant in respect
of the schedule premises if any amount is paid by him
towards rent or as rent the same would be received by
the plaintiff under protest and without prejudice to the
quit notice. Accordingly, the subsequent rents if paid will
receive by the plaintiff and will adjust the same as part of
the damages for use and occupation of the schedule
premises and not as a rent. Since the tenancy of the
defendant is terminated the defendant has no right to
remain in possession of the schedule premises and is
bound to quite, vacate and deliver the vacant possession
of the suit schedule premise to the plaintiffs. Subsequent
to the termination of the tenancy the defendant has no
right to remain in occupation of the schedule property
and the defendant is liable to pay damages by way of
compensation for use and occupation/mesne profits at
the rate of 3,00,000/- per month. Hence the present suit
is filed prayed for decreeing the suit directing the
O.S.No.3525/2014 C/w O.S.No.2874/2015
9 O.S.No.7365/2015
defendant to quite, vacate and deliver the vacant
possession of the schedule premises to the plaintiffs
forthwith and further directed to enquiry into future
mesne profit under Order 20 Rule 12 of C.P.C. and cost of
the suit.
5. After service of summons, the defendant in
O.S.No.3525/2014 appeared through his counsel and
filed written statement denying the plaint averments. The
brief facts of the written statement are as under.
The suit of the plaintiff is not maintainable either in
law or on facts. The averments of the plaint that plaintiffs
are the owners and landlords of the premises fully
described in the schedule and defendant was tenant
under plaintiffs in respect of said property on monthly
rent of Rs.1,85,000/- and tenancy month is English
Calendar month commencing from 1st day of every month
and ending with the last day of same month is false and
the plaintiffs be put to strict proof of the same. The
averments that defendant has not paid enhancement of
O.S.No.3525/2014 C/w O.S.No.2874/2015
10 O.S.No.7365/2015
rent as agreed by him is not correct. Further the
defendant was paying the rents by means of two cheques
one self cheque for Rs.1,10,000/- and another cheque for
Rs.75,000/- after deducting TDS, for his convenience
sake in all Rs.1,85,000/- is utter false and plaintiff be put
to strict proof of the same. It is false to say that
defendant is agreed to pay maintenance charges, service
charges and also the enhancement of rent as agreed by
him to the plaintiffs is false, plaintiff be put to strict proof
of the same, further averments that defendant is trying
to sub-let the schedule premises under the guise of
Partnership with other persons contrary to the terms and
conditions of the agreement and illegally, unauthorisedly
without the consent of the plaintiff is all false and created
story to suit the convenience of the plaintiff. It is false
to say that the tenancy of the defendant in respect of
schedule premises is terminated by means of quite
notice, dated 28.03.2014 immediately after the expiry of
30.04.2014. The quit notice was sent by registered post
to the both the addresses of the defendants are all false.
O.S.No.3525/2014 C/w O.S.No.2874/2015
11 O.S.No.7365/2015
Further averments that said notice was duly serviced on
the defendant and he has neither complied it not replied
are all false, plaintiff be put to strict proof of the same.
The suit is not properly valued, court fee paid is
insufficient. The plaintiffs in order to make illegal gain
and played fraud on the defendant by claiming higher
rent on the basis of forged document and they have not
disclosed the fact that defendant has paid a sum of
Rs.20,00,000/- to the security deposit hence suit of the
plaintiff not maitnainble. True facts of the case are as
under.
That this defendant is the tenant under plaintiffs
and has taken the suit schedule premises as per lease
Agreement dated 26.11.2009. AS per the said lease
agreement the plaintiffs have rented the schedule
premises on monthly rent of Rs.75,000/-, though the
agreement speaks about the period of 11 months it was
agreed in the agreement itself that by mutual agreement
the lease can be extended. The plaintiffs have taken
O.S.No.3525/2014 C/w O.S.No.2874/2015
12 O.S.No.7365/2015
Security deposit a sum of Rs.20,00,000/-, from the
defendant by way of cash and cheque in this regard they
have executed two receipts for Rs.10,00,000/-, on
26.11.2009, in order to make an illegal gain they have
suppressed the said fact. At the time of entering into an
agreement the plaintiffs have put a condition that
agreement will be made in two sets both will be signed by
all the parties. However, it was made clear by the
plaintiffs that the original will be with them and the
duplicate will be given to the defendant. Accordingly the
defendant has signed the two sets of papers and he got
retained the agreement which was made duplicate with
him. The plaintiffs have played fraud on the defendant in
getting the signature of the defendant on a original stamp
paper wherein the alleged rent has mentioned as
Rs.1,85,000/- per month. The agreement relied upon by
the plaintiffs to terminate the lease and to file a suit for
eviction is not at all the agreement entered and acted
upon by the plaintiffs and defendant. The plaintiffs and
the defendant have entered into and acted an agreement
O.S.No.3525/2014 C/w O.S.No.2874/2015
13 O.S.No.7365/2015
wherein the rent was mentioned as Rs.75,000/- per
month. Hence the suit is filed by the plaintiffs based on
the fabricated document itself, so it is not maintainable in
law. The plaintiffs have taken signature of the defendant
on two sets of lease agreement claiming to be the
duplicate of one lease agreement while giving the copy of
the lease agreement to the defendant has given the
materially altered agreement. The defendant herein never
agreed to pay the rent of Rs.1,85,000/- per month to the
schedule premises. The plaintiffs in order to threaten or
to demand more rent in the event of not agreeing by the
defendant after certain period has deliberately created
the original lease agreement by mentioning
Rs.1,85,000/- as rent per month and in the Xerox copy of
the lease agreement showing rental amount of
Rs.75,000/- to the defendant. As per the same from the
date of entering into lease agreement, the defendant has
been paying the rent at the rate of Rs.75,000/- per
month. The plaintiffs have used 4th page of original
lease agreement, dated 26.11.2009 and materially
O.S.No.3525/2014 C/w O.S.No.2874/2015
14 O.S.No.7365/2015
altering the same issued the xerox copy of the said
document to the defendant. It is submitted that
defendants have noticing the amount in the xerox copy of
the agreement as Rs.75,000/- has signed the original one
where amount has been shown as Rs.1,85,000/- thinking
the amount is a sum of Rs.75,000/- only. The plaintiffs
are the owners of commercial complex and they have let
out several shop was for rent. The plaintiffs are not at
all required the schedule premises for their personal use
and occupation. The defendants is running cloth
business in the name and style 'Sri Satyam Silk ' has
invested huge amount for the interior with the permission
of plaintiffs and also invested huge amount for his
business. He has employed several employees and they
are all depending upon the said business. The plaintiffs
have offered the suit schedule premises to the defendant
with the assurance that locking period would be 10 years
they would not asked him to vacate. Further they agreed
to take 15% enhanced rent after completion of 5 years as
the defendant had invested huge amount for interiors and
O.S.No.3525/2014 C/w O.S.No.2874/2015
15 O.S.No.7365/2015
also business. The defendant used to pay the rent by
way of cheque after deducting income tax and the
defendant has paid entire rent till the date of filing suit,
after filing the suit plaintiffs herein refused to receive the
rent. Hence he could not pay the same. The defendant
is ready and willing to deposit up to date rent at the rate
of Rs.75,000/- from the date of suit to till today before
the court. After filing the suit, the plaintiffs with an
intention to harass the defendant purposely disconnected
the electricity. It has been reconnected after filing the
criminal case. The plaintiffs have not approached this
court with clean hands. The present rent of the schedule
premises would be around Rs.3,00,000/-, is highly
exaggerated only to make an illegal gain. The rent paying
by defendant itself is higher. The suit of the plaintiff is not
at all maintainable. Hence prayed for dismissal of the
same.
6. The brief facts of the plaintiffs case in
O.S.No.2874/015 and 7365/2015 are as under:
O.S.No.3525/2014 C/w O.S.No.2874/2015
16 O.S.No.7365/2015
That plaintiffs are the owners and landlords of suit
schedule premises and the defendant was tenant under
the plaintiffs on monthly rent of Rs.1,85,000/-. The
tenancy month is the English Calendar month
commencing from 1st day of every month and ending with
the last day of same month. The defendant had agreed
to enhance the rent by 15% per month on the agreed
rent once in three years from the period of date of lease
agreement. The date of agreement was 26.11.2009.
The defendant had agreed to pay the maintenance
charges of Rs.3000/- every month. He has also agreed
to pay service tax on the rent applicable. The defendant
has not paid the maintenance charges and also the
service tax as agreed by him. He has also not paid the
enhancement of the rent as agreed by him. The
defendant was paying the rent by means of two cheques.
One self cheque for Rs.1,10,000/- and another account
payee cheque for Rs.75,000/- after deducting TDS for his
convenience sake, in all R.1,85,000/-. Inspite of several
demands and requests by the plaintiffs the defendant
O.S.No.3525/2014 C/w O.S.No.2874/2015
17 O.S.No.7365/2015
with held payment of maintenance charges, service tax
and enhancement of rent. The tenancy of the defendant
is already terminated by issuing quite notice, dated
28.03.2014, with effect from 30.04.2014 it was duly
served. The defendant has neither replied nor complied
the terms of the notice. In the notice, dated 28.03.2018
itself it was made it clear that subsequent to the
termination tenancy of the defendant in respect of the
schedule premises if any amount is paid by him towards
rent or as rent the same would be received by the
plaintiff under protest as part of the damages amount
and without prejudice to the quit notice. A Civil suit for
ejectment has already been filed by the plaintiffs against
defendant in O.S.No.3525/2014, and the same is pending
on the file of this court. These suits have been filed for
recovery of arrears of rent by way of damages for use
and occupation of the premises for the period from
01.02.2014 to 30.04.2014 and arrears of rent by way of
damages from 1.5.2014 to 31.3.2015, difference of
enhanced rent from 1.2.2013 to 30.4.2014 and 1.5.2014
O.S.No.3525/2014 C/w O.S.No.2874/2015
18 O.S.No.7365/2015
to 31.3.2015 at the rate of 15% on 1,85,000/- per
month, maintenance charges from 1.4.2012 to 31.3.2015
at the rate of Rs.3000/- per month and service taxes on
Rs.1,85,000/- from 1.4.2012 to 31.1.2013 and 1.2.2013
to 31.3.2015 for a total sum of Rs.33,31,853.40 and a
sum of Rs.9,75,161.80 after deducting advance/security
deposit amount paid by the defendant. It is also pending
on the file of this court after termination of the tenancy
the defendant has no right to remain in occupation of the
schedule property and defendant is liable to pay damages
by way of compensation for use and occupation/mesne
profits at the rate of 3,00,000/- per month which is the
prevailing rate of rent in the locality for similar premises
in the area it let out. Meanwhile the defendant is making
sublet the schedule premises to the third party and wants
to leave the jurisdiction of this court without paying the
arrears of rent by way of damages/compensation for use
and occupation of the schedule premises, if no legal
action is taken by the plaintiffs, till the disposal of the suit
in O.S.No.3525/2014. The amount will become heavy
O.S.No.3525/2014 C/w O.S.No.2874/2015
19 O.S.No.7365/2015
and payable and defendant may ran away from the
jurisdiction of this court. Under such circumstances the
plaintiff will not be in a position to recover the due
amount from the defendant. If separate application is
made in the aforesaid suit for ejectment for recovery of
rent and damages/compensation for use and occupation,
mesne profits, maintenance charges, service tax etc., at
the agreed rate. The said suit for ejectment will be
procrastinated by the defendant when the main relief of
decree for ejectment of the defendant from the suit
schedule property will be delayed and further there will
be further more amount will become due. Hence the
preset suit has been filed for recovery of amount due by
the defendant at the agreed rate without prejudice to the
rights of the plaintiffs who claim future
damages/compensation for use and occupation of the suit
premises. The defendant is liable to pay enhanced rent as
agreed by the defendant at the rate of Rs.2,12,750/-
from 1-3-2013 i.e. 15% on the agreed rent of
Rs.1,85,000/-, further the defendant has not paid
O.S.No.3525/2014 C/w O.S.No.2874/2015
20 O.S.No.7365/2015
maintenance charge and service tax from the inception of
the tenancy. A total sum of Rs.9,75,161-80and a sum of
Rs.33,31,853.40 is due to the plaintiffs after deducting a
sum of Rs.10,00,000/- was paid by the defendant as
security deposit through cheque at the time of occupation
of the schedule premises. Now the defendant is liable to
pay a sum of Rs.9,75,161.80 and interest at the rate of
12% per annum from the date of suit till the date of
realization.
7. After service of summons, the defendant in
O.S.No.2874/2015 and O.S.No.7365/2015 appeared
through his counsel and filed written statement denying
the plaint averments. The brief facts of the written
statements are as under.
The suit of the plaintiffs is not maintainable either in
law or on facts of the case. The plaintiffs are the owners
and landlord of suit schedule premises, the defendant is
tenant under them on monthly rent of Rs.1,85,000/- and
tenancy month is the English Calendar month
O.S.No.3525/2014 C/w O.S.No.2874/2015
21 O.S.No.7365/2015
commencing from 1st day of every month and ending with
the last day of same month is false and the plaintiff be
put to strict proof of the same. The monthly rent
Rs.1,85,000/- to the schedule premises is utterly false.
The plaintiff be put to strict proof of the same. The
actual rent was Rs.75,000/- after deducting TDS. It is
false to say that defendant is chronic defaulter and
irregular in payment of rent, hence denied. It is false to
say that plaintiffs have terminating the tenancy of
defendant in respect of suit schedule property by issuing
quite notice dated 28.03.2014, so also the contention
that the tenancy expires from 30.04.2014 and quite
notice has been duly served on the defendant are all false
hence denied. The suit is hit by principles of resjuicata in
view of pendency of O.S.No.3525/2014. The plaintiffs
have demanded incorrect, illogic and highly exorbitant
amount in order to make an illegal gain. It is false to say
that the defendant is liable to pay a sum of Rs.9,75,161/-
on the date of filing of the suit.
The true facts of the case are as under.
O.S.No.3525/2014 C/w O.S.No.2874/2015
22 O.S.No.7365/2015
That defendant is the tenant under the plaintiffs has
taken the suit schedule premises as per lease Agreement,
dated 26.11.2009 on monthly rent of Rs.75,000/-.
Though the agreement speaks about 11 months lease but
it is extendable on mutual agreement. This defendant has
paid Rs.20,00,000/- rupees towards security deposit. This
defendant has already paid monthly rent of Rs.75,000/-
which including service tax regularly. The plaintiffs
claiming illegal amount, suit is not at all maintainable
prayed for dismissal of the suit.
8. On the basis of the above pleadings, materials
and documents, my predecessor in office has framed the
following issues:
Issues in O.S.No.3525/2014
1. Whether the plaintiffs prove that they
have terminated the tenancy rights of the
defendant legally and validly?
2. Whether the plaintiff is entitled for the
reliefs as prayed for?
O.S.No.3525/2014 C/w O.S.No.2874/2015
23 O.S.No.7365/2015
3. What order or decree?
Additional Issues:
4. Whether the defendant proves the suit is
based on fabricated lease agreement?
5. Whether the defendant proves that the agreed
rent of the premises in question is only a sum
of Rs.75,000/- per month but not a sum of
Rs.1,85,000/- per month as claimed by the
plaintiff in the plaint?
6. Whether the defendant proves that the plaintiff
herein by playing fraud upon him has created
the lease agreement to claim the rent as
Rs.1,85,000/-per month instead of
Rs.75,000/-?
7. Whether the defendant proves that he has
paid a sum of Rs.20,00,000/- to the plaintiff
towards advance while taking the premises on
lease?
O.S.No.3525/2014 C/w O.S.No.2874/2015
24 O.S.No.7365/2015
Issues in O.S.No.2874/2015:
1. Do the plaintiff prove the suit claim amount
is due by the defendant towards arrears of
rent?
2. Whether the plaintiff is entitled for the
interest in suit claim amount?
3. Whether the suit is hit by principles of
respondent-judicata?
4. Whether the suit is barred by under order 2
Rule 2 of C.P.C.?
5. What order or Decree?
Issues in O.S.No.7365/2015:
1. Do the plaintiff prove that the
defendant to be liable to pay the suit
claim amount?
2. If so what is the rate of interest to
which plaintiffs are entitled?
3. Does the defendant prove the suit to
be hit by principles of res-judicata by
virtue of O.S.3525/2014?
4. Does the defendant further prove this
suit to be barred under Order 2 Rule 2
of C.P.C.?
O.S.No.3525/2014 C/w O.S.No.2874/2015
25 O.S.No.7365/2015
5. Does the defendant prove not to have
committed any default and therefore
liable to pay the suit claim amount?
6. What order or decree?
9. In order to prove the case of the plaintiffs, first
plaintiff himself examined as P.W.1 and got marked 18
documents as Ex.P1 to 18 documents. On the other hand
defendant himself examined as D.W.1 and got marked 8
documents as Ex.D.1 to 8 and closed his side evidence,
hence case is posted for arguments.
10. Heard the arguments of both sides. Perused
pleading, evidence and documents relied by both parties.
11. My findings to the above issues are as follows :
Issues in O.S.No.3525/2014
Issue No.1 : In the Affirmative,
Issue No.2 : In the affirmative,
Additional Issue No.4 : In the negative,
Additional Issue No.5 : In the negative,
Additional Issue No.6 : In the negative,
O.S.No.3525/2014 C/w O.S.No.2874/2015
26 O.S.No.7365/2015
Additional Issue No.7 : In the Affirmative,
Issue No.3 : As per final order
Issues in O.S.No.2874/2015:
Issue No.1 : In the affirmative,
Issue No.2 : In the affirmative,
Issue No.3 : In the negative,
Issue No.4 : In the negative,
Issue No.5 : As per final order
Issues in O.S.No.7365/2015:
Issue No.1 : In the affirmative,
Issue No.2 : In the affirmative,
Issue No.3 : In the negative,
Issue No.4 : In the negative,
Issue No.5 : In the negative,
Issue No.6 : As per final order
O.S.No.3525/2014 C/w O.S.No.2874/2015
27 O.S.No.7365/2015
REASONS
12. ISSUE No.1 in O.S.No.3525/2014: According
to the plaintiffs they are the land owners and defendant
is the tenant in occupation of the suit schedule premises.
The tenancy is months to month tenancy as per English
calendar commencing from 1st day of every month and
ending with the last day of every month. The schedule
premises was let out for non residential/commercial
purpose. It measures more than 14 square meters.
The defendant has to pay maintenance charges, service
charges and also enhancement of rent as agreed by him.
Inspite of several demands and requests made by the
plaintiffs he withheld the same hence he has rendered
himself liable to be evicted from the schedule premises
on the said ground. It is also contend that defendant is
trying to sub let the schedule premises under the guise
of entering into partnership firm with other person
contrary to the terms and conditions of the lease
agreement and illegally, unauthorisedly and without
O.S.No.3525/2014 C/w O.S.No.2874/2015
28 O.S.No.7365/2015
consent of the plaintiffs, so also he has made major
unauthorized alterations in the schedule premises
without the consent of plaintiffs contrary to the terms
and conditions of the lease agreement. The period for
which the schedule premises was let out to the
defendant was expired and he has no right to continue
the lease for further period and he is liable to be evicted.
The plaintiffs required the schedule premises for their
own use and occupation. The plaintiffs have requested
the defendant orally to vacate and deliver the vacant
possession of schedule premises, but the defendant for
one or the other reasons postponing to vacate and hand
over vacant possession of the suit schedule property in
favour of the plaintiffs. The act of the defendant is
detrimental to the interest of the plaintiffs. Therefore
the plaintiffs do not wish to continue the tenancy of the
defendant in respect of the suit schedule premises and
terminated his tenancy in respect of the suit schedule
premises by issuing quite notice, dated 28.03.2014 and
terminated the tenancy of the defendant immediately
O.S.No.3525/2014 C/w O.S.No.2874/2015
29 O.S.No.7365/2015
after expiry of 30.04.2014. The notice was duly served
on the defendant on 7.04.2014 even copy of the notice
was duly affixed on the front door of the schedule
premises on 29.03.2014. Hence the plaintiffs have duly
terminated the tenancy rights of the defendant in respect
of the suit schedule premises legally and validly. These
facts have been denied by the defendant in his written
statement and contended that, he never tried to
alteration or damage the suit schedule premises without
the will and wish of the plaintiffs. He has not undertaken
any alternation in the suit schedule premises, so also he
has not tried to sub-let the suit schedule premises in
favour of 3rd parties under the guise of partnership.
Further it is false to say that defendant has not paid
maintenance charges/service charges and also enhanced
rate of rent as agreed by him to the plaintiffs in the lease
agreement that too inspite of several demands and
requests made by the plaintiffs. The plaintiffs be put to
strict proof of the same. It is also false to say that
plaintiffs are required the suit schedule premises for their
O.S.No.3525/2014 C/w O.S.No.2874/2015
30 O.S.No.7365/2015
own and personal use. The plaintiffs are having some
other premises for their use. It is also false to say that
plaintiffs got issued quit notice, dated 28.03.2014
terminating the tenancy right immediately after expiry of
30.04.2014 and said notice was sent through registered
post and it was duly served. The plaintiffs be put to strict
proof of the same. Though the lease agreement is for 11
months, but it is extendable with mutual consent of the
parties. There is no valid and lawful termination of
tenancy in respect of the suit schedule property.
13. That to prove the case of the plaintiffs, first
plaintiff got examined as P.W.1. In his affidavit filed in
the form of examination-in-chief he has reiterated the
plaint averments and in support of his contentions he has
relied Ex.P8 to 18 documents. Ex.P8 is the legal notice
issued by plaintiff through their counsel, dated
28.03.2014, wherein it is stated that the tenancy of the
defendant in respect of the suit schedule premises has
been terminated with effect from 30.04.2014. The said
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31 O.S.No.7365/2015
notice further discloses that plaintiffs have complied the
statutory provisions required under Section 106 of
Transfer of Property Act. The Ex.P-9 and 10 are the
postal receipts disclosing issuance of notice under Ex.P-
8 to the defendant on his two addresses. Ex.P-11 is the
postal acknowledgement discloses due service of said
notice on the defendant as on 07.04.2014. The Ex.P.12
to 17 are the photographs of the suit schedule premises,
wherein the affixture of quit notice on the conspicuous
place of the suit schedule premises evidenced. The
Ex.P-18 is the C.D. pertaining to the photographs of
Ex.P.12 to 17, though the defendant in his written
statement has denied issuance of termination notice and
its due service on him and contended that plaintiff be
put to strict proof of the same. Inspite of lengthy cross
examination to P.W.1 nothing is elicited from his mouth
contrary to the plaintiffs contentions. Since the postal
acknowledgement is issued by public office bearing the
address of the defendant. the defendant has not disputed
his address shown in Ex.P.11. On the other hand the
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32 O.S.No.7365/2015
defendant himself got examined himself as D.W.1, in his
affidavit though he has reiterated the contentions of the
written statement, but in the course of his cross
examination he has admitted due service of notice under
Ex.P.8. It is not the case of the defendant that the
address shown in Ex.P.8 does not belongs to him nor he
has made any effort to deny the fact of affixture of quit
notice to the conspicuous place of the suit schedule
premises. Admittedly the defendant is carrying out his
business in the suit schedule premises. So taking into
consideration of all these facts and circumstances one
point is clear that plaintiffs have proved issuance of
termination of tenancy notice in respect of the suit
schedule premises on the defendant and its due service
on the defendant. No contra evidence is available to
deny these facts. That on the contrary the defendant has
contended that though the termination of tenancy notice
has been issued by the plaintiffs in respect of suit
schedule premises on him, but as per the terms and
conditions of the lease agreement entered between
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33 O.S.No.7365/2015
himself and plaintiffs discloses that the tenancy is
extendable with mutual consent. On perusal of the
contents of Ex.P.7 and Ex.D.2 there is a clause at page 5
para No.5 thus reads as under.
" It is agreed between the parties that
the period of lease is for eleven months only,
i.e. commencing from 1.02.2010 in the first
instance and thereafter the same may be
continued for further period by mutual
understandings and consultation between
lessors and lessee".
14. Even the contents of the lease agreement is
considered then also it is very much necessary that for
extending the term of tenancy mutual consent of both
parties is necessary. Since the plaintiffs have made it
clear that they are not intended to continue the tenancy
of the defendant and they have issued notice of
termination of tenancy. Such being the case the terms
and conditions referred above in the lease deed will not
come to the aid of the defendant to establish his
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34 O.S.No.7365/2015
contentions. As already discussed above the plaintiffs
have complied the statutory provisions required under
Section 106 of Transfer of Property Act by issuing of
quit termination of tenancy notice which has been duly
served on the defendant. Therefore the contentions of
the defendant that said tenancy termination notice is
not legal and valid one does not holds good. The
termination of tenancy of the defendant in respect of
suit schedule premises appears to be valid, lawful, no
ground are available to deny the same. Therefore in my
view plaintiffs have proved this issue. Accordingly I
have answered it in the affirmative.
15. Additional Issue No.4, 5 & 6 in
O.S.No.3525/2014:-
All the issues are inter-related and connected to
each other to avoid repetition, I have taken them jointly
for discussion.
According to the defendant he has entered into
lease agreement with the plaintiffs on 26.11.2009 in
respect of suit schedule premises. The plaintiffs have
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35 O.S.No.7365/2015
rented the said property for rental amount of
Rs.75,000/- per month. It is his further contention that
at the time of entering into agreement the plaintiffs have
put a condition that agreement will be made in two sets,
and both sets will be signed by all the parties. However
it was made clear by the plaintiffs that original will be
kept with them and the duplicate will be with the
defendant. Accordingly the defendant signed the two
sets of papers and retained the agreement which was
made in duplicate with him. The defendant is surprised
and shocked to know that the plaintiffs herein had played
fraud on the defendant in getting his signature on a
original stamp paper, wherein the rent is alleged to have
been mentioned as 1,85,000/- per month. The
agreement relied upon the plaintiffs to terminate the
lease and to file the suit for eviction is not at all
agreement entered acted upon by the plaintiffs and
defendant. The plaintiffs and defendant have entered
into an agreement wherein the rent was mentioned as
Rs.75,000/- only per month. Hence the suit filed by the
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36 O.S.No.7365/2015
plaintiff based on fabricated document itself is not
maintainable in law. Further by way of amendment the
defendant set up plea that plaintiffs though have taken
the signature of defendant on 2 sets of lease agreement
claiming to be the duplicate of one lease agreement
while giving the copy of lease agreement to the
defendant has given the materially altered agreement.
Further contend that defendant never ready to pay rent
of Rs.1,85,000/- per month to the schedule premises.
The plaintiffs deliberately created original lease
agreement by mentioning Rs.1,85,000/- as rent per
month and in the Xerox copy furnished to defendant as
Rs.75,000/- per month, since from the date of entering
into lease agreement the defendant has been paying the
rent of Rs.75,000/-. The plaintiffs have materially altered
the Xerox copy of the agreement, dated 26.11.2009.
That to prove the case of the defendant he himself got
examined as D.W.1, in his affidavit filed in the form of
examination-in-chief, he has reiterated the written
statement averments and contended that the plaintiff
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37 O.S.No.7365/2015
has created lease agreement dated 26.11.2019 by
materially altering the issues, xerox copy of the said
document to him. According to him, he has signed the
original one where amount has been shown as
1,85,000/-, thinking the amount a sum of Rs.75,000/-
only. The plaintiff is claiming rent of the suit schedule
premises at the rate of Rs.1,85,000/- per month which is
illegal and based on fraudulent document. On the other
hand he is paying the rent at the rate of 75,000/- per
month only. But in his cross-examination he has deposed
as under.
"In the year 2010, I was occupied the suit
schedule property. 1st lease agreement was
executed on 26.11.2009. Except the said
agreements no agreement have been executed.
I am a B.com graduate. It is true to suggest that
without verifying the document I never put my
signature. It is true to suggest that before
executing the lease deed draft was prepared. I
was read over the said draft. The said draft was
with me about 2-3 days. I was approved the
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38 O.S.No.7365/2015
said draft, thereafter it was typed and handover
to me.
That on perusal of the above evidence it is quite
clear that the defendant is a graduate, he has not jin
habit of signing the document without going through its
contents. In his further cross examination he deposed as
under.
" The said original agreement executed in two
sets. Out of which one is on stamp paper and I
was not seen the another copy, whether it was
typed or copied. The plaintiff has not hand over
the copy of the said lease deed, witness again
stated that I was received Xerox copy. It is true
to suggest that original was with the plaintiff and
Xerox copy was with me. I was put my signature
on the said document.
17. That he further cross examination of D.W.1
makes it clear that the original agreement executed in
two sets he has put his signature on the document. If
really two sets of lease agreements have been made
under such circumstances the defendant ought to have
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39 O.S.No.7365/2015
received Xerox copy of both the sets. No such contention
raised. Further he deposed as under.
" My brother name Mahaveer Chand was a
witness to the document. The plaintiff son by
name Kumar Kumar was a witness to the said
document".
18. On perusal of the entire evidence of D.W.1, it is
quite clear that, DW.1 is a B.Com., graduate qualified,
having knowledge of reading, writing and understanding
the language. The D.W.1 has admitted that before
executing the lease deed in respect of the suit schedule
premises the draft has been prepared and it has been
served to defendant. The defendant has gone through it
after his approval only the original lease deed has been
drafted. The D.W.1. further admits that he has signed
the lease deed after going through its contents. Such
being the case the contention of the defendant that
plaintiff has manipulated, fabricated and created lease
deed to defraud the defendant and inserted certain pages
which are not the part of the original lease deed and
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40 O.S.No.7365/2015
handed over it to the defendant does not holds good.
The D.W.1 in his further cross examination admitted his
signature available on Ex.P.7 original lease deed and
further deposed as under.
" Now I have seen the original copy of the
said document which is already marked as
Ex.P.7, now I have seen Ex.D.7 and identified
my signatures. The contents of Ex.P.7 are true
and correct.
Since the D.W.1 himself admitted in his cross
examination that contents of Ex.P7 are true and correct,
such being the facts of case his contention that Ex.P.7 is
a fraudulent, fabricated document does not holds good.
The D.W.1 in his further cross examination deposed as
under.
"Now I have seen Ex.D.2, which is produced
by me as per my knowledge contents of Ex.D.2
are true and correct. Now I have seen the
clause-21 of Ex.D.2 which is correct. It is true
to suggest that, as per my knowledge duly
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41 O.S.No.7365/2015
signed is nothing but signature made by me.
Original copy of Ex.D.2 was not hand over to
me. Ex.D.2 was hand over to me duly signed
by both parties".
19. According to D.W.1 as per his knowledge the
contents of Ex.D.2 are correct it is not his case that
Ex.D.2 itself is the true and correct document for the
parties to the suit. Even he has stated that where is the
original of Ex.D.2 and he don't no where about of it.
hence evidence of D.W.1 is not helpful to prove the
contention of defendant argument appears to be
reasonable. The D.W.1 further deposed as under.
"I do not know, existence of original Ex.D.2
and whereabouts' it. After filing the suit, I was
not tried to verify the originals of Ex.D.2. Now I
have seen the Ex.P7 and Ex.D.2 are not ditto.
The witness voluntarily stated that both are
same and not changed. It is false to suggest
that, para No.4 of Ex.P7 and Ex.D.2 are not
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42 O.S.No.7365/2015
similar. It is true to suggest that, para No.2 of
page No.4 are contain 6 lines and paragraph 3
of page No.4 at Ex.P.7 contains 6 lines and
Paragraph- 3 of Page No.4 also contains 6
lines, but margin was left in higher side. It is
true to suggest that, Para 4 of page No.4 in
Ex.P7 and Ex.D.2 are different. It is true to
suggest that, para- 4 of Ex.P7 at top three
lines are though similar to the Ex.D.2, but
there is difference. Said differences are Ex.P7
and Ex.D.2 at para-4 are came to my
knowledge as of now.
20. The very evidence of D.W.1 clearly goes to
show that Ex.P.7 and Ex.D.2 one and the same looks
similar to each other but infact they are having full of
changes not matches each other particularly at page
No.4 of the respective documents. It has been
categorically admitted by D.W.1 in his further cross
examination. In one breath the D.W.1 contends that
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43 O.S.No.7365/2015
draft of lease deed was prepared after his approval
original deed has been prepared and there after he has
gone through its contents thereafter xerox has been
taken and he put his signature in his shop. Later he
changed his version and tried contend that after his
signature the Xerox of the document has been obtained
but in the written statement has set up plea that two
lease deeds have prepared as per the instructions of the
plaintiff. In one deed the rent of the suit schedule
premises has been shown as 75,000/- per month which
was the actual and agreed rate of rent. It is also
contended that as per the instigation of plaintiffs another
lease agreement has been executed on the same day
wherein the rent of the schedule premises was shown as
Rs.1,85,000/- per month. The plaintiffs have kept both
originals it with them the same has been now used for
filing false suit against him. It the contention of the
defendant and evidence of D.W.1 is taken into
consideration it is appears that defendant is not firm in
his contentions he is trying to change his versions time
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44 O.S.No.7365/2015
to time argument appears to be reasonable. If really the
plaintiffs have obtained signature of the defendant on
two independent lease deeds as contended by the
defendant he ought to have been examined his brother
who is one of the attesting witness of the document
which has not been done. It is specific case of the
plaintiffs that, defendant used to pay monthly rent of
Rs.1,85,000/- by way of account payee cheque for a sum
of Rs.75,000/- and remaining amount of Rs.1,10,000/-
through self cheque. Though this fact has been denied
by the defendants and contended that he has agreed to
pay monthly rent of Rs.75,000/- only and he never
agreed to pay a sum of Rs.1,85,000/-, as contended by
the plaintiffs. To prove the case of the plaintiffs they
examined P.W.1 who has reiterated the plaint averments
in support of their contention they have relied Ex.P.7
document. The defendant has disputed the Ex.P.7 and
relied Ex.D.2 document. The defendant has also set up
plea that Ex.P7 document not executed to act upon. As
already discussed above the defendant has miserably
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45 O.S.No.7365/2015
failed to prove that the Ex.P.7 is a concocted and created
document to defraud him. In one breath he has
categorically admits that draft of Ex.P7 has been
prepared and handed over to him and it was with him for
3-4 days and he has gone through the terms and
conditions of the said lease agreement and after his
approval only the original lease agreement has been
prepared. Further the D.W.1 in his cross examination
categorically admitted that he is not in habit of signing
the document without going though its contents and also
deposed that he has gone through the contents of the
agreement of lease prepared by plaintiffs then put his
signature. Under these circumstances the execution of
lease deed has been admitted by D.W.1 argument
appears to be reasonable. Having admitting the
execution of lease agreement and setting up contrary
plea stating that plaintiff has prepared two sets of lease
agreement and obtained his signatures on both the
documents and he has given Xerox copy of the lease
agreement endorsing on it as duplicate as per Ex.D.2
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46 O.S.No.7365/2015
does not holds good. Since the defendant has set up
plea of concocting of document and committing of fraud
the burden of proving such plea lies on him. Except self
interested oral testimony of D.W.1, no material has been
placed by the defendant to prove this contention. The
defendant has set up plea of forgery and concoction of
document. The burden is on him to establish said
contention as already stated above no material has been
brought on record. The defendant has relied Ex.D.3 to 7
documents i.e., his audited financial statements.
Wherein the reference of payment of Rs.75,000/-
towards rent is appears. It is the specific contention of
the plaintiffs that balance amount of Rs.1,10,000/-
towards rent used to paid by the defendant by way of
self cheque. The D.W.1 in his further cross examination
admitted the fact of issuance of self cheque. But
contended that said cheques have been issued by him
towards dealers and waivers. Admittedly the plaintiffs
are not the waivers or dealers transaction with
defendant. Such would be the fact where question arises
O.S.No.3525/2014 C/w O.S.No.2874/2015
47 O.S.No.7365/2015
for issuing cheque for sum of Rs.1,10,000/- towards
them has not been properly explained by the D.W.1.
The defendant has admitted his signature available on
Ex.P7 and he has also admitted its due execution. So the
burden cast on him to prove that there was a second set
of lease agreement executed on the same day. In one
breath D.W.1 try to contend that both parties have put
their original signature on the Xerox set also. If such
would be the fact where that copy has gone, why it has
not been produced what was prevented him to produce
the Xerox copy of lease agreement having original
signature of the parties, no proper explanation came
from the defendant side. On the contrary the D.W.1 in
his further cross examination deposed as under.
" 2009 jAzÀ £Á£ÀÄ gÀÆ.1,10,000-00 ¨ÁrUÉ PÉÆqÀÄwÛzÉÝ
JAzÀgÉ ¸Àj . F ºÀAvÀz°
À è ¥ÀæwªÁ¢ ¥ÀgÀ ªÀQîgÀÄ
CzÀÄ AiÀiÁjUÉ JA§ ¸ÀéµÀvÉ E®è JAzÀÄ CPÉëÃ¥À
ªÀåPÀÛ¥Àr¸ÀÄvÁÛgÉ. ¸ÀzÀj ºÀtªÀ£ÀÄß ¸É¯ïá ªÀÄÆ®PÀ PÉÆqÀÄwÛzÉÝ
JAzÀgÉ ¸Àj. ¸ÀzÀj J¯Áè ZÉPÀÄÌUÀ¼ÀÄ ¸ÀAvÉÆõÀ gÀªgÀ À
O.S.No.3525/2014 C/w O.S.No.2874/2015
48 O.S.No.7365/2015
SÁvÉUÉ dªÀiÁ CVgÀÄvÀÛªÉ JAzÀgÉ ¸ÀjAiÀÄ®è . ¸ÀzÀj
ZÉPÀÄÌU¼À £À ÀÄß £Á£ÀÄ £ÀªÀÄä C£ïjf¸ÀÖgïØ rîgïìUÉ
PÉÆqÀÄwÛzÉÝ JAzÀÄ JAzÀÄ ¸ÁQë ¸ÀévÀB ºÉüÀÄvÁÛgÉ . ¸ÀzÀj
¸É¯ïà ZÉPÀÄÌUÀ¼À£ÀÄß C£ï jf¸ÀÖgïØ rîgïìUÉ PÉÆlÖ §UÉÎ
£À£Àß SÁvÉAiÀÄ°è G¯ÉèÃT¹gÀÄvÉÛÃ£É .¸ÀzÀj SÁvÉAiÀÄ GvÁgÀ
£ÁåAiÀÄ®AiÀÄPÉÌ ºÁdgÀÄ ªÀiÁrzÉÝÃ£É .
21. The very admission of D.W.1 about payment of
sum of Rs.1,10,000/- towards rent through self cheque
directly supports the contention of the plaintiffs. That
the witness got alert due to the intervention of the
learned counsel for the defendant and tried to change his
version stating that said cheques used to give the
unregistered dealers. The defendant has not produced
the khatha extract which disclosing payment made to
unregistered dealers through self cheque. Since he has
admitted the fact self cheque of Rs.1,10,000/- he used to
pay rental then the question of giving those cheque to
the unregistered dealers does not arise. The evidence of
D.W.1 has to be considered going to his previous
O.S.No.3525/2014 C/w O.S.No.2874/2015
49 O.S.No.7365/2015
deposition then it clearly appears that D.W.1 is trying to
avoid the truth coming before the court due to the
intervention during curse of cross examination
arguments cannot be rejected. So Taking into
consideration of all these facts and circumstances one
point is clear that the defendant was paying rent
amount of Rs.75,000/- through account payee cheque
and remaining amount of Rs.1,10,000/- though self
cheque contention appears to be reasonable. If these
facts are considered the defendant has agreed to pay
monthly rent of the suit schedule premises at the rate of
Rs.1,85,000/- appears to be acceptable. No reason is
available to deny the same. Therefore the contention of
the defendant that plaintiffs have got created Ex.P.7
lease agreement to suit their convenient does not holds
good. That his further contention that plaintiffs by
playing fraud upon him has created the lease agreement
to claim the rent as Rs.1,85,000/- instead of Rs.75,000/-
per month does not holds good. The defendant has
O.S.No.3525/2014 C/w O.S.No.2874/2015
50 O.S.No.7365/2015
miserably failed to prove additional issue No.4, 5 and 6.
therefore I have answered them in the negative.
22. Additional Issue No.7 in O.S.No.3525/2014:
According to the defendant he has paid a sum of
Rs.20,00,000/- to the plaintiffs towards security deposit
which has not been disclosed by the plaintiffs in the
plaint intentionally to make unlawful gain. The plaintiffs
have denied this fact and contend that the defendant has
paid only Rs.10,00,000/- through cheque towards
security deposit and he has not paid any more amount in
cash towards security deposit. Therefore prayed for
rejection of the claim of the defendant. That to prove
the case of the defendant he himself got examined as
D.W.1. In support of his oral contention he has relied
Ex.D.1 and 8 documents. Ex.D.1 has been confronted to
the P.W.1 and he has admitted his signature available on
it but denied the contents of the documents. On perusal
of contents of the document it reveals that on
26.11.2009, the plaintiffs have issued receipts for
amount of received by them for a sum of Rs.10,00,000/-
O.S.No.3525/2014 C/w O.S.No.2874/2015
51 O.S.No.7365/2015
in cash as security deposit in respect of the suit schedule
premises. Since the plaintiffs admitted their signature
on the receipt under Ex.D.1 so it is for them to explain
before the court under what circumstances they have put
their signature on Ex.D.1, no proper explanation has
came from the plaintiffs side in this regard. The Ex.D.8
has been admitted by the plaintiffs and contended that
they have received Rs.10,00,000/- through cheque
towards security deposit in respect of the tenancy of the
suit schedule premises. Since the plaintiffs are miserably
failed to explain under what circumstances they have put
their signatures on Ex.D.1. therefore the contention of
the defendant that on the date of execution of lease deed
the plaintiffs have executed two receipts under Ex.D.1
and 8 for receiving cash a sum of Rs.10,00,000/- and a
cheque for sum of Rs.10,00,000/- towards security
deposit appears to be reasonable and acceptable. The
plaintiffs except evidence of P.W.1 no material has been
placed on record to deny the contents of the documents.
Therefore in my view the defendant has proved that he
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52 O.S.No.7365/2015
has paid a sum of Rs.20,00,000/- has security deposit in
respect of suit schedule premises. The defendant has
proved this issue. Accordingly, I have answered it in the
affirmative.
23. Issue No.3 & 4 in O.S.No.7365/2015 &
O.S.No.2874/2015:
According to the defendant the suit of the plaintiff
in O.S.No.2974/2015 and 7365/2015 are hit by
principles of respondent-judicata. Since the plaintiffs
have filed suit in O.S.No.3525/2014 for ejectment
against the defendant in respect of the suit schedule
premises. In view of the pendency of the said suit the
present suit is hit by principles of respondent-judicata
also provision under or 2 Rule 2 of C.P.C. These facts
have been denied by the plaintiffs and contended that
the suits will not hit by Section.11 of C.P.C. or by order 2
rule 2 of C.P.C. Before going to the merits of the case
which is just and reasonable to go through the provisions
of Section 11 of C.P.C. Thus reads as under:
O.S.No.3525/2014 C/w O.S.No.2874/2015
53 O.S.No.7365/2015
Section of 11 of C.P.C.
11. Respondent judicata.- No Court shall
try any suit or issue in which the matter
directly and substantially in issue has been
directly and substantially in issue in a former
suit between the same parties, or between
parties under whom they or any of them
claim, litigating under the same title, in a
Court competent to try such subsequent suit
or the suit in which such issue has been sub-
sequently raised, and has been heard and
finally decided by such Court".
24. On perusal of the above provision it is quite clear
no court shall try any suit or issue in which the matter
directly or substantially in issue has been directly and
substantially in issue in a former suits between the same
parties under whom and they or any of them claim,
litigating under the same title, in a court of competent to
try such subsequent suit or the suit in which such issue
has been subsequently raised, has been heard and finally
decided by such court. So the foremost very important
O.S.No.3525/2014 C/w O.S.No.2874/2015
54 O.S.No.7365/2015
thing for consideration of Section 11 of C.P.C. regarding
principle of resjudicata there must be a findings given by
competent court of law in respect of same issues
between same parties held in a formerly suit. In the
present case No such circumstances arisen. Admittedly
the suit O.S.No.3525/2014 filed by the plaintiffs against
the defendant for the relief of ejectment based on the
termination of the tenancy in respect of suit schedule
property is still pending for adjudication it has been
clubbed with these suits so far no findings has been
given by this court on the said suit on any issues raised
in that suit. Therefore the contentions of the defendant
that the present suits are hit by principles of res-judicata
as per Section.11 of C.P.C. appears to be bald and
untenable. The defendant has not made out any grounds
for considering his contention and not satisfied the
ingredients of provisions of Section 11 of C.P.C. In my
view he has miserably failed to prove issue No.3 in both
suits. Further it is the case of the defendant that the suit
of the plaintiff hit by order 2 Rule 2 of C.P.C. Before
O.S.No.3525/2014 C/w O.S.No.2874/2015
55 O.S.No.7365/2015
going through the merits of the case it is just and proper
to go through the provisions of order 2 Rule 2 of C.P.C.
thus reads as under.
"2. Suit to include the whole claim.-
(1) Every suit shall include the whole of the
claim which the plaintiff is entitled to make in
respect of the cause of action, but a plaintiff
may relinquish any portion of his claim in
order to bring the suit within the jurisdiction
of any Court".
" (2) Relinquishment of part of claim.-
Where a plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his
claim, he shall not afterwards sue in respect
of the portion so omitted or relinquished".
25. As per the above provisions every suit shall
include whole of the claim which the plaintiff is entitled
to make in respect of the cause of action, but a plaintiffs
may relinquish any portion of his claim in order to bring
the suit within jurisdiction of any Court. In this case the
plaintiff is not making any fresh claim other than the
claim made in O.S.No.3525/2014, on the other hand the
O.S.No.3525/2014 C/w O.S.No.2874/2015
56 O.S.No.7365/2015
claim made in both the suits are the anciliary reliefs in
respect of ejectment claimed in O.S.No.3525/2014 based
on termination of tenancy. Consequential relief of
damages and other claims have been made. That in the
earlier suit the plaintiff has not paid the required court
fee no he has paid in these suits. Therefore the
contention of the defendant that O.S.No.2874/2015 and
O.S.No.7565/2015 are hit by order 2 rule 2 of C.P.C.
does not hold good. The defendant has miserably failed
to prove this issue. Hence I have answered both the
issues in the negative.
26. Issue No.1 & 5 in O.S.No.7365/2015:
According to the plaintiffs the defendant was
tenant under the plaintiffs in respect of suit schedule
premises on a monthly rent of Rs.1,85,000/-. The
tenancy was month of month as per English calendar
commencing from 1st day of every month and ending
with the last day of same month. The tenancy was
commenced from 1.2.2010. The defendant had agree to
O.S.No.3525/2014 C/w O.S.No.2874/2015
57 O.S.No.7365/2015
enhance the rent @ 15% per annum on the agreed rent
once in 3 years from the date of agreement. If the
tenancy is continued beyond agreed period of 11 months
period. Further he had agreed to pay maintenance
charges of Rs.3,000/- every month so also to pay service
tax on the rent as applicable. The defendant was paying
the rent by means of two cheques, one self for
Rs.1,10,000/- and another for Rs.75,000/- deducing TDS
for his convenience sake. The defendant is a chronic
defaulter and irregular in payment of rents. He has not
paid rent from 1.2.2014 and he has not paid
maintenances charges, service tax as agreed by him.
So he is liable to pay arrears of rent from 1.2.2014 to
30.04.2014 and maintenance charges and service tax as
on the date of suit. so the defendant is liable to pay a
sum of Rs.5,55,000/- towards arrears of rent. Further he
is laible to pay a sum of Rs.7,40,000/- by way of
damages from 1.4.2015 to 31.7.2015. The difference of
enhanced rent for the period of 1.4.2015 to 31.07.2015
at the rate of 15% on the rent of Rs.1,85,000/- (for four
O.S.No.3525/2014 C/w O.S.No.2874/2015
58 O.S.No.7365/2015
months at Rs.27,750/-per month comes to 1,11,000/-)
maintenances charges for the period of 1.4.2015 to
31.07.2015 at the rate of Rs3,000/- per month comes
Rs.12,000/-, service tax on Rs.2,12,750/- p.m. for the
period from 1.4.2015 to 31.7.2015 at the rate of
Rs.12.36% for 2 months comes to Rs.52,591/-. Service
tax on Rs.2,12,750/- per month for the period from
1.6.2015 to 31.7.2015 at Rs.14% for 2 months comes
to Rs.59,570/- all together he is liable to pay
Rs.9,75,161-80. Therefore he is liable to pay a sum of
Rs.9,75,161-80 with interest at the rate of 12% per
annum. These facts have been denied by the defendant
in his written statement contended that they have
agreed to take 15% enhanced rent after completion of 5
years from the date of agreement. The maintenance
amount of Rs.3000/- is highly exorbitant and it is higher
side. The rate of rent was agreed only Rs.75,000/- and
not Rs.1,85,000/-. Therefore the claim of the plaintiff is
illegal and not sustainable. On perusal of contents of
Ex.P.7 lease agreement at page No.4 paragraph No.2 it
O.S.No.3525/2014 C/w O.S.No.2874/2015
59 O.S.No.7365/2015
is stated that the lessee has agreed and shall pay the
maintenance charges of Rs.3000/- every month and also
service tax as applicable to the lessors. Even the terms
of the lease agreement relied by the defendant under
Ex.D.2 also the includes the same terms and conditions.
The clause-3 of same page thus read as under.
" it is agreed by the lessee that, if for
any reason if the tenancy in respect of the
schedule premises is continued beyond
the period of eleven months as stipulated
in clause 6 of this agreement, the Lessee
hereby agreed to enhance the rent for the
schedule premises, by 15% (Fifteen
percent) on the present agreed rent once
in three years from the date of this
agreement".
27. Such being the case the contention of the
defendant that he has agreed to pay enhanced rate of
rent in respect of the suit schedule premises after 5
years from the date of agreement and he as not agreed
to pay sum of Rs.3000/- towards maintenance and
applicable service tax on the rental amount of the suit
O.S.No.3525/2014 C/w O.S.No.2874/2015
60 O.S.No.7365/2015
schedule premises does not holds good. The contention
of the defendant is contrary to the terms and conditions
of the agreement relied by him so also the contention
about rental amount claimed by the defendant in respect
of the suit schedule property is also contrary to the
contents of thee documents proved by the plaintiffs. In
the course of examination of D.W.1 he has categorically
admitted that he has agreed to pay the maintenance
charges and service tax applicable to the lessor so also
enhancement of rental at the rate of 15% after lapse of 3
years. Such being the case the contention of the
defendant appears to be unacceptable. Therefore the
defendant is liable to pay maintenance charges at the
rate of 3000/- per month and applicable service tax on
the rental as well as enhanced rental value as contended
by the plaintiffs holds to be good. Further the defendant
has not placed sufficient material to prove that he has
paid rent from 1.2.2010 to 31.04.2010 @ rate of
1,85,000/- per month so he is liable to pay rental
amount for the said period arguments also appears to be
O.S.No.3525/2014 C/w O.S.No.2874/2015
61 O.S.No.7365/2015
reasonable and acceptable. No reason is available to
deny the same, they are entitle to receive a sum of
Rs.9,75,161.80. Since the transaction is in respect of
the commercial in nature the defendant is running the
cloth business in the suit schedule premises and made
use of said money in his business transaction. Therefore
the rate of rent claimed by the plaintiff at 12% per
annum is reasonable and acceptable, the plaintiffs have
proved these issue. Hence I have answered issue No.1 in
the affirmative and issue No.5 in the negative.
28. Issue No.1 in O.S.No.2874/2015: According
to the plaintiffs as on the date arrears of rent for the
period 1.2.2014 to 3.04.2014 at the rate of
Rs.1,85,000/- for 3 months Rs.5,55,000/-, arrears of
rent by way of partial damages from 1.5.2014 to
31.3.2015 at the rate of 1,85,000/- (for 11 months)
comes to Rs.20,35,000/-, difference of enhanced rent for
the period from 1.2.2013 to 30.04.2014 at the rate of
15% on the rent of Rs.1,85,000/- for 15 months, at
Rs.27,750/- per moth comes to Rs.4,16,250/-, difference
O.S.No.3525/2014 C/w O.S.No.2874/2015
62 O.S.No.7365/2015
of enhanced rent by way of partial damages from
1.5.2014 to 31.3.2015 at the rate of 15% on the rate of
rent at Rs.1, 85,000/- for 11 months at the rate of
27,750/- comes to Rs.3,05,250/-, Maintenance charges
for 3 years period from 1.4.2012 to 31.03.2015 at the
rate of 3000/- per month (for 36 moths) comes to
Rs.1,08,000/-, Service tax from period 1.4.2012 to
31.1.2013 at the rate of Rs.22,866/- (for 10 months)
comes to Rs.2,28,660/-, Service tax and enhanced rent
of Rs.2,12,750/- for the period from 1.2.2013 to
31.3.2015 at Rs.26,295.90 paise per month (for 26
months) comes to Rs.6,93,693.40 paise over all a sum of
Rs.43,31,853.40 after deduction amount of
Rs.10,00,000/- received towards security deposit the
defendant is liable to pay a sum of Rs.33,31,853.40
paisa. These facts have been denied by the defendant in
his written statement and contended that the actual rent
was Rs.75,000/- that to after deducting TDS. The
plaintiffs have demanded incorrect, illogic and highly
exorbitant amount in order to make an illegal gain. The
O.S.No.3525/2014 C/w O.S.No.2874/2015
63 O.S.No.7365/2015
claim of the plaintiffs towards damages of the schedule
premises would be around Rs.3,00,000/-, is highly
exaggerated only to make an illegal gain. The rent
paying by the defendant itself is higher. Hence prayed
for dismissal of the claim of the plaintiffs.
29. As already discussed in the above issue it is
quite clear that rental value of the suit schedule premises
was Rs.1,85,000/- per month. The defendant has not
produced document to show that he has paid rent for the
period from 1.2.2014 to 30.4.2014. That the defendant
has not produced documents to show that he has paid
any rent for the month of February 2014 to April 2014.
So in the absence of material documents the contentions
of the plaintiff that rent amount has not been paid by the
defendant argument reasonable to be acceptable. Since
the burden of proving payment of rent is on the tenant.
The plaintiff has also claimed a sum of Rs.1,85,000/-
i.e., rent agreed in the agreement as partial damages in
respect of the suit schedule premises from the period of
termination of tenancy till filing of the present suit. The
O.S.No.3525/2014 C/w O.S.No.2874/2015
64 O.S.No.7365/2015
plaintiffs in O.S.No.3525/2014 has prayed for
determination of damages in respect of the suit schedule
property from the date of termination of tenancy till
vacating the suit schedule premises and handing over
the vacant possession in favour of plaintiffs as per order
20 Rule 12 of C.P.C. since the plaintiffs proved the rate
of rent of the suit schedule property is Rs.1,85,000/- per
month it has to be considered as partial damages
amount till determination of actual damages and award
in favour of the plaintiffs after determination of the
actual damages amount paid as partial damages can be
adjusted and balance can be paid to the plaintiffs. This
fact has been denied by the defendant and contend that
since the plaintiff himself has sought for determination of
damages in respect of the suit schedule premises from
the period of termination of tenancy till its vacating as
per Order 20 Rule 12 C.P.C. He cannot claim partial
damages. Hence prayed for rejection of the claim of the
plaintiffs. As already discussed in the above issues the
plaintiffs have proved that the suit schedule property
O.S.No.3525/2014 C/w O.S.No.2874/2015
65 O.S.No.7365/2015
was occupied by the defendant on rental amount of
Rs.1,85,000/- per month. Such being the case, it is the
amount of rent fetched to the suit schedule property
much prior to termination of tenancy so said amount can
be considered as partial damages of the suit proerty for
unauthorized occupation by the defendant till
determination of actual damages, it is reasonable to be
award partial damages amount considering the rental
amount arguments appears to be reasonable.
Therefore the contention of the defendant does not
appear proper. As already discussed in the above issues
the enhancement of rent which was agreed as per terms
of the lease agreement i.e.,at the rate of 15% on the
rental amount of Rs.1,85,000/-, the plaintiff sought for
awarding said enhanced rate of rent for the period of 15
months at the rate of Rs.27,750/-per month which
comes to Rs.4,15,450/-, so also said enhanced rent for
the period of 1.5.2014 to 31.3.2015 comes to
Rs.3,05,250/-. Further the defendant has not produced
single piece of document to show that he has paid
O.S.No.3525/2014 C/w O.S.No.2874/2015
66 O.S.No.7365/2015
maintenance charges and service tax in respect of the
suit schedule premises at the rate of 3000/- per month
from the date of commencement of tenancy till today,
however the plaintiffs have restricted their claim in
respect of maintenance only for 3 years which comes to
Rs.1,08,000/- and service tax of Rs.1,85,000/- from
1.4.2012 to 31.3.2012 for 10 months and a sum of
Rs.6,83,693/- for the period of 26 months all together
43,31,853/-, for which the plaintiffs are entitled to
recover the said amount from the defendant, he has not
placed single piece of document. Hence in my view the
plaintiffs have proved this issue, accordingly I have
answered these issues in affirmative.
30. Issue No.2 in O.S.No.7365/2015 &
O.S.No. 2874/15: Since the defendant has continue
his occupation of the suit schedule premises inspite of
termination of tenancy and doing cloth business in the
said premises. So the activities of the defendant is
nothing but commercial in nature and giving the profit.
Therefore plaintiff has sought for grant of interest on the
O.S.No.3525/2014 C/w O.S.No.2874/2015
67 O.S.No.7365/2015
suit claim at the rate of 12% per annum. The fact that
defendant is running cloth business in the suit schedule
property is not in dispute. The plaintiffs have proved that
they are terminated the tenancy of the defendant in
respect of the suit schedule premises by issuing statutory
notice and called upon the defendant to vacate the suit
schedule premises and hand over the vacant possession
in his favour. As already discussed in the above issues
the service of tenancy termination notice is not in
dispute. Inspite of termination of tenancy the defendant
has not vacated the suit schedule premises on the other
hand he has continued to be in possession of the said
premises and doing his business of gaining profit.
Therefore the transaction of the defendant is nothing but
commercial in nature, so he is liable to pay the interest
over the suit claim at the rate of 12% per annum
arguments appear to be reasonable. No reason is
available to deny the same. Therefore in my view the
plaintiff has proved this issues. Accordingly, I have
answered this issue in the affirmative.
O.S.No.3525/2014 C/w O.S.No.2874/2015
68 O.S.No.7365/2015
31. Issue No.2 in O.S.No.3525/2014: According to
the plaintiffs they have terminated the tenancy of the
defendant in respect of the suit schedule premises by
issuing statutory notice required under law and called
upon the defendant to vacate the suit schedule premises
and hand over the vacant possession in their favour on
or before 30.04.2014. Inspite of service of said notice
the defendant has not vacated the schedule premises
and hand over the vacant possession of the same in
favour of the plaintiffs. As already discussed in the above
issues the plaintiffs are able to prove the valid
termination of the tenancy of the defendant in respect of
the suit schedule premises. Though the defendant has
raised several contentions contrary to the plaint
averments but he has miserably failed to establish them.
On the other hand plaintiffs have proved their
contentions with cogent and convincing evidence. The
defendant is liable to vacate the suit schedule premises
and hand over the vacant possession in favour of the
plaintiffs. The plaintiffs have also prayed for granting
O.S.No.3525/2014 C/w O.S.No.2874/2015
69 O.S.No.7365/2015
damages for unauthorized occupation of suit schedule
premises even after termination of tenancy. He has also
prayed the court for awarding the damages and it can be
determined as per provisions under Order 20 Rule 12 of
C.P.C. It is further case of the plaintiff that the agreed
rate of rent of suit schedule premises is Rs.1,85,000/-
per month, said amount can be consider as partial
damages until actual damage is determined and
defendant be directed to pay the said amount. In view of
the discussion held in other issues the plaintiffs have
proved entitled to the relief sought in the suit. The
quantum of damages for unauthorized occupation of the
suit schedule premises has to be determined as per
provisions of order 20 Rule 12 of C.P.C. till then the
rental amount of Rs.1,85,000/- can be considered as
partial damages after determination of actual damages
amount argument appears to be reasonable. Further the
amount paid by the defendant towards partial damages
can be deducted in the total damages quantified after
determing it ass per order 20 rule 12 C.P.C. which will
O.S.No.3525/2014 C/w O.S.No.2874/2015
70 O.S.No.7365/2015
meet the ends of justice arguments holds to be good. No
reason is made out by the defendant to deny the same.
Therefore the plaintiffs have proved this issue.
Accordingly, I have answered this issue in the
affirmative.
32. Issue No.3 in O.S.3525/2014, Issue No.5 in
O.S.No.2874/2015, & Issue No.6 in O.S.No.7365/2015:
In the result, I proceed to pass the following;
ORDER
The Suit of the plaintiffs in O.S.No.3525/2014, O.S.No.2874/2015 and O.S.No.7365/2015 are hereby decreed with costs.
Consequently, the defendant is directed to vacate the suit schedule premises and hand over the vacant possession in favour of the plaintiffs within 60 days from the date of this order, so also the defendant is liable to pay the arrears of rent at the rate of O.S.No.3525/2014 C/w O.S.No.2874/2015 71 O.S.No.7365/2015 Rs.1,85,000/- per month from 1.2.2014 to 30.04.2014, a sum of Rs.5,55,000/-, further the defendant is liable to pay a sum of Rs.10,24,515-20 towards service tax, a sum of Rs.1,20,000/- towards maintenance, difference of enhanced rent Rs.8,32,500/-, towards partial damages of Rs.12,95,000/- with interest at the rate of 12% per annum from the date of suit till its actual realization.
Draw the decree accordingly.
Keep original judgment in O.S.No.3525/2014 and copies thereof in O.S.No.2874/2015 and O.S.No.7365/2015. [Dictated to the Judgment writer, transcribed & computerized by him, then corrected on computer, print out taken, signed by me, then pronounced in the Open Court, dated this the 29th day of February, 2020] (MALLIKARJUNA) XIV Addl. City Civil Judge Bangalore.
O.S.No.3525/2014 C/w O.S.No.2874/2015 72 O.S.No.7365/2015 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : Sri. B.Santhosh List of documents marked on behalf of the plaintiff/s:
Ex.P.1 & 2 : Certified copy of Sale Deeds dt.04.11.1998 Ex.P.3 : C/c of katha certificate Ex.P.4 & 5 : Katha certificate and extract Ex.P.6 : Tax paid receipts Ex.P.7 : Lease Agreement, dt.26.09.2011 Ex.P.8 : Office copy of the Legal Notice Ex.P.9 & 10 : Postal Receipts Ex.P.11 : Postal acknowledgment Ex.P.12 to 18 : Photographs along with compact disk List of witnesses examined on behalf of the defendant/s:
D.W.1 : Sri.Uttamchand List of documents marked on behalf of the defendant/s :
Ex.D.1 : Receipt
Ex.D.2 : Xerox rent agreement, dt: 26.11.2009
Ex.D.3 to 7 : Audit financial statement for the year
2010-11 to 2014-15
Ex.D.8 : Receipt dt: 26.11.2009
XIV Addl. City Civil Judge
Bangalore.
O.S.No.3525/2014 C/w O.S.No.2874/2015 73 O.S.No.7365/2015 O.S.No.3525/2014 C/w O.S.No.2874/2015 74 O.S.No.7365/2015